The Issue The issue for determination is whether Ms. Spence-Jones committed the offenses set forth in the Order of Probable Cause, filed September 1, 2006, and, if so, what action should be taken.
Findings Of Fact FEC received a sworn complaint against Ms. Spence-Jones from Mr. Dunn on or about January 20, 2006. Mr. Dunn alleged the following in his sworn complaint: Michelle Spence-Jones violated F.S. 104.271 with false and malicious charges against and about me on November 26, 27, 28, & 29th [sic] with thousands of campaign literature distributed to residents in the City of Miami, District 5. Along with a radio commercial with slander on radio stations . . . in Miami on November 29th election day by her campaign manager/advisor . . . The Michelle Spence-Jones campaign paid for individuals to vote for Michelle Spence-Jones $50 per vote! . . . F.S. 104.061. The City of Miami, Manager . . . violated F.S. 104.31 as documented in the Miami New Times article attached. Affidavits, campaign literature, and photograph were attached to the sworn complaint. Mr. Dunn’s sworn complaint asserted factually specific violations that Ms. Spence-Jones, in her campaign literature that was distributed on dates certain, made false and malicious charges against and about him; that, on election day, radio commercials by her campaign manager/advisor contained slander; that her campaign paid individuals to vote for her; and that the City of Miami’s Manager violated a specified statutory provision as documented in a news article, attached to his sworn complaint. Further, his sworn complaint cited statutorily specific violations for the factually specific violations— Sections 104.271, 104.061, and 104.31, Florida Statutes. An investigator with FEC investigated Mr. Dunn’s sworn complaint. After the investigation, a Staff Recommendation was prepared. The Staff Recommendation was submitted to FEC. The Staff Recommendation recommended that probable cause be found for the following: two counts for violating Sections 106.12(3), Florida Statutes; three counts for violating Section 106.143(1)(a), Florida Statutes; two counts for violating Section 106.1439(1), Florida Statutes; and one count for violating Section 106.19(1)(d), Florida Statutes. Further, the Staff Recommendation recommended that no probable cause be found for the following: violating Sections 104.061(2),104.271(2), and 106.15(3), Florida Statutes. On September 1, 2006, FEC filed an Order of Probable Cause finding probable cause to charge Ms. Spence-Jones with the following: Count 1: On or about November 28, 2005, [she] violated Section 106.12(3), Florida Statutes, prohibiting a person from spending petty cash on unauthorized items, when [she] spent $22,910 to pay campaign workers with cash. Count 2: On or about November 28, 2005, [she] violated Section 106.12(3), Florida Statutes, prohibiting a person from spending petty cash on unauthorized items, when [she] spent $1,090.75 cash for food and other supplies to several vendors. Count 3: Between November 23 and November 29, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the ad “Will a man rob God?” on the radio without the proper disclaimer. Count 4: Between November 23 and November 29, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the ad “Michelle Spence-Jones is a strong black woman...” on the radio without the proper disclaimer. Count 5: On or about November 26, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the flyer “Don’t Gamble on Rev. Richard Dunn” without the proper disclaimer. (Exhibit 15 attached to Report of Investigation). Count 6: Between November 23 and November 29, 2005, [she] violated Section 106.1439(1), Florida Statutes, by failing to mark prominently the electioneering communication with the correct disclaimer, when she published the ad stating, “... Again, I’m Michelle Spence- Jones, candidate for City of Miami Commission District Five. Happy Thanksgiving. May God continue to bless you and keep you well...” without any disclaimer. Count 7: Between November 23 and November 29, 2005, [she] violated Section 106.1439(1), Florida Statutes, by failing to mark prominently the electioneering communication with the correct disclaimer, when she published the ad stating, “...I’m Michelle Spence-Jones, candidate for City of Miami Commission District Five. As we recover from this year’s hurricane season, we were encouraged by the kindness of others who have given to their neighbors in their time of need...” without any disclaimer. Count 8: On or about November 28, 2005, [she] violated Section 106.19(1)(d), Florida Statutes, by making or authorizing an expenditure prohibited by Chapter 106, Florida Statutes, when [she] authorized her campaign treasurer to spend $24,000 to pay campaign workers and to purchase food with cash and subsequently ratified those cash expenditures by signing the 2005 termination report. Further, the Order of Probable Cause found no probable cause to charge Ms. Spence-Jones with the following: Section 104.061(2), Florida Statutes, prohibiting a person from giving or promising anything of value to a person intending to buy that person’s or another’s vote or to corruptly influence that person or another in casting his vote; Section 104.271(2), Florida Statutes, prohibiting a candidate from making false and defamatory factual statements with malice about an opposing candidate; and Section 106.15(3), Florida Statutes, prohibiting a candidate from using the services or any municipal officer or employee during working hours for furthering her candidacy for nomination or election to public office. Ms. Spence-Jones disputed the Order of Probable Cause and requested a hearing before the Division of Administrative Hearings. On January 16, 2007, Ms. Spence-Jones filed a Motion to Dismiss Proceeding for Lack of Jurisdiction or for Summary Final Order, together with one exhibit. On January 24, 2007, FEC filed a Response in Opposition, together with five exhibits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order dismissing the Order of Probable Cause, Counts one through eight, for lack of jurisdiction. DONE AND ENTERED this 21st day of February, 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2007.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Oasis Cafe at Key Biscayne, c/o Carlos Flores, 19 Harbor Drive, Miami, Florida 33149; by regular U.S. Mail to the Honorable Darren A. Schwartz, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399- 3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Styeet, Tallahassee, Florida 32399-2202, this |@¥day of Yezember , 2013. msn For the Division of Hotels and Restaurants 7196 4008 G11) 4516 1240 | SENDERS, RECORD
The Issue The issue in this case is whether Petitioner David Hall’s answer to question number 115 on the Florida State Officer Certification Examination should have been accepted as correct.
Findings Of Fact Petitioner is a former police officer from New York who wishes to relocate to Florida. He took the exam on June 30, 2015. According to his Petition for Formal Administrative Hearing, Petitioner missed passing the exam by one question. He made the decision to challenge the Department’s determination as to the correct answer for exam question number 115. That question and answer choices as set forth in the exam are as follows: Q: In accordance with Chapter 810, F.S., how are burglaries classified? Intent of suspects Type of location entered Tools used in commission Number of persons involved Petitioner chose Answer A. He reasoned that, according to the curriculum, burglary was distinguished from trespassing by a single element, i.e., the intent of the offender. While acknowledging that the type of location was also a way to classify burglaries, he reasoned that either answer would be equally correct. Petitioner cites to the Florida Basic Recruit Training Program book (the “Manual”) utilized by the Florida Law Enforcement Academy (Volume 1, Version 2014.07), which was the primary curriculum material for persons taking the exam in June 2015. On page 337 of the Manual, the following statement appears: Trespassing and burglary are similar, yet different, and can be confusing. Trespassing involves being somewhere that you do not own and without permission of the owner. The difference with burglary is that you are somewhere that you do not own and without permission of the owner; however, the intent of being there is different. The intent for being there is to commit another crime, such as theft. Petitioner analogized a house guest versus an intruder to classify each crime, but his analysis addressed the elements of the crimes rather than how the crimes are classified. The Department used experienced field training officers to help develop and verify the exam questions. The officers reviewed question 115 and found it to be valid, legitimate, and in accordance with the Manual. The proper and only fully correct answer to question 115 was B, type of location entered. The basis for this answer appears in the Manual at page 336, which states in pertinent part: Chapter 810, F.S. classifies burglaries according to the type of location entered, such as a dwelling, structure, or conveyance. Penalties are more severe for burglary of a dwelling than for a structure or conveyance. (Emphasis added). The Department maintains that the clear language of question number 115-–taken almost verbatim from the Manual-– dictates a single answer, B. The question asks how the crime of burglary, which by its definition includes the offender’s intent, is classified. That is, the question is concerned with how the crime will be classified (i.e., more or less severely) based upon where it occurred. The question does not ask for the elements of burglary, which would require the examinee to include intent. The question was not ambiguous. Interestingly, Roy Gunnarsson, FDLE’s training and research manager, an expert in psychometrics, a field of study and practice involving the measurement of human knowledge skills and abilities, determined that more examinees (165) answered the same way as Petitioner than answered correctly (164). But as the expert testified, testing is not governed by majority vote. From the test results, it is clear that question number 115 was difficult, with most examinees failing to answer correctly. That does not invalidate the question; it only verifies that the question was harder than others. Because of Petitioner’s challenge, Mr. Gunnarsson prepared an “Item Challenge Response,” a review of the challenged question and its possible answers. After conducting an intensive review of the matter, he concluded that the question and answer were “accurate, located in the curriculum, and [he] denies the validity of the examinee’s claim.” His opinion was based upon the application of psychometrics to the test and on his experience and training. Petitioner, who seemed to have extensive knowledge concerning law enforcement, argued his position quite well. Unfortunately, his arguments are not supported by the plain language appearing in the training manual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Law Enforcement denying Petitioner David Hall’s challenge to question number 115 in the Florida State Officer Certification Examination. DONE AND ENTERED this 11th day of February, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2016. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) David Joshua Hall 29 Slosson Lane Geneva, New York 14456 (eServed) Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) Richard L. Swearingen, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed)
Appeal For This Case This order is final agency action. Any party who is adversely affected by this order has the right to seek judicial review pursuant to Section 120.68, Florida Statutes, by filing a notice of administrative appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Florida Elections Commission at 107 West Gaines Street, Suite 224, Collins Building, Tallahassee, Florida 32399-1050 and by filing a copy of the notice of appeal with the appropriate district court of appeal. The party must attach to the notice of appeal a copy of this order and include with the notice of appeal filed with the district court of appeal the applicable filing fees. The notice of administrative appeal must be filed within 30 days of the date of this order is filed with the Commission. The date this order was filed appears in the upper right-hand corner of the first page of the order. ; Copies furnished to: Eric M. Lipman Assistant General Counsel Eric Ruiz, Respondent (certified mail) Division of Elections, Filing Officer
Findings Of Fact ae On June 11, 2009, the staff of the Commission issued a Staff Recommendation, recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. 2. On September 1, 2009, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations: Count 1: Respondent violated Section 106.07(2)(b)1., Florida Statutes, when the Respondent failed to file with the candidate’s filing officer an addendum to the candidate’s 2008 Q1 incomplete campaign report due on April 10, 2008, after receiving notice from the filing officer. 3. On September 3, 2009, the Respondent was served by certified mail with a copy of the Order of Probable Cause. 4. The Respondent and the staff stipulate to the following facts: C_0 045 (12/08) 1 Consent Order at its next available meeting. 10. | The Respondent voluntarily waives the right to any further proceedings under Chapters 104, 106, and 120, Florida Statutes, and the right to appeal the Consent Order. 11. This Consent Order is enforceable under Sections 106.265 and 120.69, Florida Statutes. The Respondent expressly waives any venue privileges and agrees that if enforcement of this Consent Order is necessary, venue shall be in Leon County, Florida, and Respondent shall be responsible for all fees and costs associated with enforcement. 12. If the Commission does not receive the signed Consent Order within 20 days of the date Respondent receives this order, the staff withdraws this offer of settlement and will proceed with the case. 13. Payment of the civil penalty is a condition precedent to the Commission’s consideration of the Consent Order. PENALTY WHEREFORE, based upon the foregoing facts and conclusions of law, the Commission finds that the Respondent has violated Section 106.07(2)(b)1., Florida Statutes, and imposes a fine of $500 for the violation. Therefore it is ORDERED that the Respondent shall remit to the Commission a civil penalty in the amount of $500 inclusive of fees’ and costs. The civil penalty shall be paid to the Florida Elections Commission, 107 W. Gaines Street, Collins Building, Suite 224, Tallahassee, Florida, 32399-1050, The Respondent hereby agrees and consents to the terms of this Order on , 2009. C_o 045 (12/08) 3 a. The Respondent was a candidate for the Florida House of Representatives- District 115 in the 2008 election. b. Section 106.07(2)(b)1., Florida Statutes, requires a candidate to file an addendum to an incomplete campaign report within three days after receiving notice from the filing officer. c. Respondent filed his 2008 QI campaign treasurer’s report listing campaign contributions and expenditures between January 1, 2008 and March 31, 2008 on April 11, 2008. The report was incomplete, and the filing officer requested the Respondent to file an addendum to his report d. Respondent did not file an addendum to his 2008 QI report within three days.
